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March 05, 2015

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee


An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee
2015 NY Slip Op 01746, Appellate Division, First Department

An individual [Trainee] was accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of a seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the employer’s determination to dismiss him from the traineeship.. Supreme Court granted the employer’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."*

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.”

The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her.

Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

* N. B. Should the appointing authority elected to terminate a probationary employee prior to his or her completing the minimum period of his or her probationary period, the individual is entitled to notice and hearing in accordance with the controlling disciplinary procedure.

The decision is posted on the Internet at:

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